400 EAST 51ST STREET LLC v. [And Other Actions]. (2007)

Supreme Court, Appellate Division, First Department, New York.

400 EAST 51ST STREET LLC, Plaintiff-Appellant, v. FIFTY FIRST BEEKMAN CORP., et al., Defendants-Respondents. Paul J. Herman, et al., Defendants. [And Other Actions].

Decided: March 27, 2007

MAZZARELLI, J.P., SAXE, MARLOW, McGUIRE, KAVANAGH, JJ.

Moses & Singer LLP, New York (Jay R. Fialkoff of counsel), for appellant. Wachtel & Masyr, LLP, New York (Evan S. Weintraub of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 6, 2006, which, to the extent appealed from as limited by the brief, granted defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's private nuisance cause of action, unanimously affirmed, with costs.

Plaintiff building developer alleges that it was forced to suspend temporarily a construction project because, after demolition in preparation for the construction, it became apparent that defendants' building, which adjoined the construction site, had an unstable wall. Inasmuch as there was no evidence that the existence of the complained-of defect was attributable to misfeasance or culpable nonfeasance on defendants' part, summary judgment dismissing the private nuisance cause of action was properly granted (see Copart Indus. v. Consolidated Edison Co. of New York, 41 N.Y.2d 564, 569-570, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977] ).

We have considered plaintiff's other contentions and find them unavailing.

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